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Oak Neck Inn - Interim Decision, September 8, 1997

Inteirm Decision, September 8, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1010

In the Matter

- of -

the Application by OAK NECK INN (c/o General Utilities, Inc.) for a permit
pursuant to Environmental Conservation Law (ECL) Article 25 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of State of New York (6 NYCRR) Part 661

DEC #1-2824-00977/00001

INTERIM DECISION

September 8, 1997

Interim Decision of the Commissioner

The Oak Neck Inn ("Applicant") has applied to the Department for a tidal wetlands permit to allow installation of a sewage disposal system for a proposed restaurant on Bayville Avenue in the Village of Bayville, Town of Oyster Bay, Nassau County. Staff objects to issuance of the permit, taking the position that the project does not comply with the Tidal Wetlands Law or the Department's tidal wetlands regulations, (6 NYCRR Part 661). Staff further maintains that the project cannot be redesigned or reduced in size so as to be in compliance. Applicant requested a hearing. The matter was assigned to Administrative Law Judge John H. Owen.

A legislative hearing and issues conference was held in Bayville on July 29, 1997. The ALJ's subsequent issues ruling dated August 5, 1997 granted party status to two intervenors and set down four tidal wetlands issues for adjudication. As authorized by 6 NYCRR 624.8(d)(2), the Applicant appealed to the Commissioner from the ALJ's ruling on issues. No other appeals have been received. Staff submitted a letter in opposition to the appeal.

The gist of Applicant's appeal is that the issues as formulated by the ALJ improperly expanded on the Staff's written objections to the project as set forth in Staff's April 30, 1997 letter to Applicant. Staff's April 30 objections cited the following problem areas:

  1. incompatibility with public health and welfare - 661.9(c)(1);
  2. violations of Development Restrictions as set forth in 661.6(a)(2) and (3); and
  3. adverse environmental impact - 661.9(c)(3).

At the issues conference, Staff proposed for adjudication the issues specified in its April 30 letter together with certain additional but related points, which the ALJ incorporated into the items determined to be issues for adjudication. The additional items are:

  • additional development restriction violations - 661.6(a)(4), (7) nd (8); and
  • presumptively incompatible use - water access not required - 661.5(b)(48).

Applicant claims that addition of these "new" items to the issues for adjudication was not done in accordance with the Department's rules, and has violated its due process rights. I find that Applicant's claims are totally unfounded.

In this tidal wetlands permit case, the Applicant has the burden of establishing that all of the applicable standards for tidal wetlands permit issuance will be met. (ECL 25-0402 and 6 NYCRR 661.9(a)). For areas adjacent to tidal wetlands, which are the subject of this case, the applicable standards are set forth in 661.9(c)(1), (2), (3) and (4). These standards are whether the project:

  1. is compatible with public health and welfare;
  2. complies with use guidelines in 661.5 and the development restrictions in 661.6 (or whether issuance of a variance is warranted (see 661.11));
  3. will not have an adverse undue impact on tidal wetlands; and
  4. complies with the use guidelines in 661.5.

The so-called "new issues" are therefore nothing more than elements of the overall requirements that the Applicant has the burden to fulfill under the Department's Part 661 regulations. Applicant assumes that Staff's April 30 letter of objection served to give the Department's approval to Oak Neck Inn's plans except for the specific written objections in Staff's April 30 letter. Such an assumption is plainly incorrect. The so-called "new issues" are components of the standards under Part 661, which Applicant needs to show that it can satisfy if it is to be granted a permit. No such component is cast aside by default simply because it may not have been expressly written out in a Staff letter of objection.

Applicant argues that the Department's rules limited the issues that Staff could raise to those set forth in its April 30 letter. Moreover, Applicant claims it has been prejudiced, either because the Applicant was surprised and will not have time to respond, or because this application has taken a long time to get to the hearing stage and has drained Applicant's resources. However, no rule has been violated and no prejudice has been suffered.

The Department's rules of procedure provide that an issue is adjudicable if it relates to a matter cited by the Department Staff as a basis to deny the permit and is contested by the Applicant. (624.4(c)(1)(ii)).Contrary to Applicant's papers on appeal, the "substantive and significant" test set forth in 624.4(c)(1)(iii) is not germane because the objection is one by Staff, not a third party. (624.4(c)(1)(i)) Under 624.4(b) of the Department's rules, the issues conference was the proper opportunity for Staff to set forth its full objections. Based on that conference, the ALJ frames the issues for adjudication. The time since that conference, over a month, has given ample notice and opportunity to the Applicant to avoid surprise. Moreover, as above noted, the substance of the "new" issues is part of Applicant's substantive burden under Part 661.

Staff has raised specific substantive objections to Applicant's plans for a sewage disposal system at the Oak Neck Inn's site. Applicant will need to come forward and show that it can satisfy the requirements under the Part 661 regulations if it is to be granted a permit. Applicant's best interests will be served by focusing on showing that the applicable standards will be met or that appropriate variances can be issued, because the Department's final decision in this case will be based on the tidal wetlands law and regulations as applied to the circumstances of this case. Applicant has ample opportunity to develop a record in support of its position.

The appeal is denied in all respects.

_____________/s/_____________
John P. Cahill, Commissioner

Dated: Albany, New York
September 8, 1997

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